27 March 2012

Unjust laws

For some reason, today, the quote alongside the picture of Martin Luther King, Jr. got me thinking. The phrase "unjust laws", in particular, struck me. What is an unjust law? Who makes the determination?

King's quote is not new. It was said before by Aquinas who was in turn drawing on Augustine, quoted as saying, "an unjust law is no law at all". I tend to agree with the sentiment, as I imagine most people would, but the rub occurs, of course, when trying to determine exactly which laws are "unjust". Based solely on this quote, it seems that King is suggesting that humans have the ability to determine for themselves what is just and what is unjust. If this is the case, then we can infer that laws are completely unnecessary in the first place. For if a law is unjust, then no one is obligated to follow it. If, on the other hand, it is just, then there was no need for the law in the first place because people would have acted accordingly on their own.

This latter point is predicated on the idea that humans are, by and large, innately interested in living in a peaceful and just society. I believe this to be true simply because society exists at all, because

no social system, whether anarchist or statist,
can work at all unless most people are "good" in the sense that they are
not all hell-bent upon assaulting and robbing their neighbors. If
everyone were so disposed, no amount of protection, whether state or
private, could succeed in staving off chaos.

The idea of no laws probably conjures images in people's minds of masked marauders throwing Molotov cocktails in the streets. I'll make the leap of suggesting that this is objectively unjust. (I'm skipping ahead with that assumption, but we'll circle back.) In order to right this injustice, we need to haul the perpetrators into court and try them. Without laws, however, the court--whether by judge or jury--is helpless to judge the actions of the defendants. In fact, any judgment against them should probably be tossed on the grounds that it would be based on the imposition of an ex post facto standard. Since the law didn't exist before the "crime" was committed, no one can be convicted of having broken it.

But, look. We've tossed the conviction based on the idea of ex post facto laws being unjust, an idea clearly introduced into our theoretical justice system ex post facto. Clearly, we need laws, if only to codify what is (believed to be) just. Whether these laws must be promulgated by a single authority, the state, or whether society can adopt them on its own is the subject of another article. Instead, this article is concerned with the idea of (un)just laws.

Aquinas doesn't leave us hanging, fortunately. He lists three things, all of which must be true, in order for the law to be "just":

The law is created for the "common good".

The law does not exceed the authority of the lawmaker.

The law burdens all equally.

For the sake of completeness, Aquinas also describes a law as being unjust if it is opposed to the "divine good". In this way, he is adding a fourth requirement that for a law to be just it must not oppose the "divine good" as dictated by Aquinas' particular religion. This point violates the third point if we wish to allow for the possibility of the existence of other religions or even the right of individuals to choose not to observe any religion. Therefore, this requirement must be rejected.

Let us now consider the remaining requirements. First, the "common good". The phrase, itself, suggests that this "good" can be objectively known and that there is some good or end to which all people subscribe. The only end to which we can confidently assert that all people are working toward is the preservation of their own lives. We know this because any who are not working toward this end presumably would have killed themselves. Thus, any remaining people can objectively be said to value life over death. Therefore, all just laws must be made in the pursuance of the preservation of life.

Second, we consider the authority of the lawmaker. This must start by determining from where this authority comes in the first place. The simplest way to do this is to conduct a thought experiment in which one person and subsequently two people exist in isolation from anyone else. This has been covered before. The conclusion of this experiment is that each person exclusively controls his/her body. If one of these two people is to become the lawmaker, he or she can only assume that role with the consent of the other. That is, a lawmaker's authority extends no further than that which is given by those who would be subject to it.

Given this, we can now determine the extent of that authority. In practice, the lawmaker can have no more authority than any individual, for an individual cannot grant authority that he himself does not possess. It is worth noting that the logical extension of this is that two individuals have no more authority than one; nor four more than two; etc. In order to determine the limits of individual authority, we return to the thought experiment in which we've already concluded that each person has the exclusive right to control his or her body. In order to maintain this right, it is necessary that neither person engage in aggressive (as opposed to defensive) force against the other. This simple rule--the golden rule--is all that is necessary to maintain that status quo. Thus, the authority of the lawmaker is limited to the prevention of the violation of the exclusive control of bodies--the use of aggressive force--between a person or people against another person or people.

Finally, there is the idea that the law, to the extent that it burdens any, must burden all equally. Given the narrow constraints on the law created by the first two requirements, equal burden of the law is not a topic that requires much, if any, investigation except to say that the law must apply to all, including the lawmaker. Failure to apply the law equally, such as it may be under the first two requirements, would be to allow an individual or individuals to act contrary to Aquinas' second provision, and as already discussed, this authority cannot properly be granted by anyone. If the discussion had turned to taxes, a debate could be had on the equality of burden created by progressive vs. flat tax systems, but the imposition of taxes by the law again falls outside of, at least, the second of Aquinas' first two requirements.

To sum up, we find under Aquinas' "modified" requirements (remember, the fourth was dropped), that just laws must be enacted to preserve life; that the scope of these laws is limited to the prevention of the use of aggressive force between persons or peoples; and that all must be subject equally to said laws. (Having arrived at these requirements through the objective observations of human actions, we can now return to the earlier statement that the masked marauders throwing Molotov cocktails were acting "unjustly". To the extent that these actions are against people, they are objectively unjust. A discussion of the propriety of such actions with respect to "property" is purposely excluded from this article.) Given these limitations on the law, we are led to the (perhaps, not so) startling conclusion that nearly all laws on the books today are "unjust".